Appeal brought on 24 May 2018 by Polskie Górnictwo Naftowe i Gazownictwo S.A. against the order of the General Court (First Chamber) made on 15 March 2018 in Case T-130/17, Polskie Górnictwo Naftowe i Gazownictwo S.A. v Commission

set aside the order under appeal of the General Court of the European Union of 15 March 2018 dismissing as inadmissible the action brought by Polskie Górnictwo Naftowe i Gazownictwo S.A. in Case T-130/17;

give a ruling on the admissibility of the action brought by Polskie Górnictwo Naftowe i Gazownictwo S.A. in Case T-130/17 concerning an application under Article 263 TFEU for the annulment of Commission Decision C(2016) 6950 final of 28 October 2016 on review of the exemption of the OPAL gas pipeline from the requirements on third party access and tariff regulation granted under Directive 2003/55/EC, 1 and declare that action admissible;

refer the case back to the General Court so that it may examine the substance of the action.

Grounds of appeal and main arguments

(1) The General Court misinterpreted Article 263 TFEU by taking the view that the appellant is not directly concerned by the European Commission’s decision.

In the context of the present ground of appeal, the appellant submits that the General Court’s assessment, finding that the appellant is not directly concerned by the European Commission’s decision, is incorrect. The approach taken by the General Court is not consistent with the existing case-law indicating that a decision of the European Commission is of direct concern to persons other than the national regulatory authority which is the addressee of that decision. In particular, the appellant indicates that the German regulatory authority clearly intended to give regulatory clearance.

(2) The General Court misinterpreted Article 263 TFEU by taking the view that the appellant is not individually concerned by the European Commission’s decision.

In this context, the appellant submits that its situation enables individualisation within the meaning of the case-law concerning the admissibility of actions. The appellant, on account of its market position, is individually concerned by the contested decision. That decision also concerns the appellant because of the situation regarding ownership of the Jamał pipeline competing with the OPAL pipeline (which constitutes a continuation of the NordStream pipeline), and also has an impact on the appellant’s situation as an entity required to guarantee the security of gas supply.

(3) The General Court misinterpreted the final limb of the fourth paragraph of Article 263 TFEU by finding that the contested decision is not a regulatory act.

In the present ground of appeal, the appellant submits that the decision is a regulatory act, and that the General Court’s assessment is incorrect in that regard.

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1 Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC (OJ 2003 L 176, p. 57).